This Agreement (as defined below) is entered into by and between Flipview Limited, New Zealand Company Number 6802714 with offices at Auckland, New Zealand (“FlipView”, “we”, “us”, “our”) and the person agreeing to these terms or the person on whose behalf you are agreeing to this Agreement (“Customer”, “you”, “your”).
This Agreement is effective and legally binding as of the date you tick the checkbox online to accept the Agreement or, if applicable, the date the Agreement is signed by the last party to sign (the “Effective Date”). If you are accepting this Agreement on behalf of another person, such as your employer or a company, you represent and warrant that:
This Agreement governs Customer’s access to and use of the Services.
Services: The “Service(s)” comprise the SaaS Service described below and the support services described below.
The SaaS Service provided by FlipView enables the Customer to allocate surveys and questionnaires to “Survey Participants” and dashboard reporting functionality to “End Users”. Once the Survey Participants complete their allocated surveys and questionnaires, the SaaS Service generates a dashboard with associated reporting for the End Users to review. FlipView reserves the right to add new features, bug fixes and enhancements to the SaaS Service from time to time by making it available on the Site, provided always that Customer will be provided with reasonable advance notice in writing. Any new feature, enhancement, addition, change or upgrade to the current SaaS Service shall be subject to this Agreement. FlipView may, from time to time, retire old features of the Service, after providing no less than 6 months advance notice in writing to the Customer (unless the Customer agrees in writing to a shorter period). The parties acknowledge and agree that this 6months notice period does not apply to third party plug in software services (e.g. newsfeed or similar) which are not material to the core performance and functionality of the Services. If after any upgrade, you prefer a retired feature, FlipView may, in its sole discretion (acting reasonably at all times) and without any obligation to do so, agree to provide the retired feature to you. You agree to ensure that your use of the Service does not violate any applicable law, including any applicable law against spamming. Customer must ensure no one uses the Site or the Services in any other manner or to violate any intellectual property rights of FlipView or third parties and shall use the Services in accordance with all applicable laws, including intellectual property laws, and any reasonable directions given by FlipView from time to time.
FlipView’s provision of the Service to you is non-exclusive. Nothing in this Agreement prevents FlipView from providing the Service to any other person.
Fees and invoicing: Your access to use the Services is granted on a subscription basis in accordance with the Pricing Schedule. You acknowledge your access to the Services may be terminated or suspended, without prejudice to FlipView’s other rights and remedies, if undisputed invoices are not paid by the due date FlipView reserves the right to adjust the fee structure from time to time, but in any event no more than once a year, provided always that there will be no adjustment to the fee structure for 24 months from the Effective Date. If FlipView chooses to modify the fee structure, FlipView will provide the Customer written notice (which may be by email) at least 90 days prior to the modifications taking effect. You must pay FlipView the Fees. We will provide you with valid tax invoices on a monthly basis prior to the due date for payment.
You must pay the Fees:
Term: This Agreement will commence on the Effective Date and continue until terminated in accordance with its terms. FlipView will continue to bill the Fees to the Customer until this Agreement is terminated in accordance with its terms. The minimum term for use of FlipView is 12 months, and unless notified otherwise, your contract for services will continue thereafter subject to termination on ninety (90) days written notice.
Licensed Rights: FlipView grants you a limited, non-exclusive, non-transferable, revocable license to:
When accessing the Service, you and your personnel must:
You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, sub-license, or transfer any portion of the Surveys or the Reports.
A breach of any of this Agreement by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by you.
You are responsible for procuring all licences, authorisations and consents required for you and your Personnel to use the Service, including to use, store and input Customer Data into, and process and distribute Customer Data through, the Service.
Modifications: Due to updates and data limitations, FlipView reserves the right to modify and/or discontinue the Service at any time, whether temporarily or permanently, with or without notice to the Customer, and FlipView shall not be liable to you or any third party for any such modification and/or discontinuance of the Service. FlipView further reserves the right to make modifications or additions to this Agreement at its sole discretion, at any time, with or without notice to the Customer. If you continue to use the Service you are deemed to accept such modifications or additions. You accept the Software on an as-is basis and in the event you require any modification to the Software for your particular use, we will provide you with a quote to create the requested modification to the Software. In the event you accept the quote we will amend the Software in accordance with the quote and you must pay the associated fees. You acknowledge that any intellectual property rights attaching to the modification to the Software will be owned exclusively by us and you will have no ownership of such modification or right to use the modification except during the Term and in accordance with the terms of this Agreement. .
Reliance: The information presented in the Dashboard and the Reports is an aggregation of data that you have provided. This data is not independently verified or audited by FlipView. It is your responsibility to ensure that all information provided to FlipView by you or on your behalf (including by any of your directors, officers, employees, contractors and agents) is in all respects accurate, complete and not misleading (whether by omission or otherwise). FlipView does not accept responsibility for the accuracy or completeness of such information, including the Customer Data.
Your responsibilities: You will ensure that the collection, retention and dissemination of information in connection with the Services complies with the Privacy Act and with any other legal requirements governing the collection and use of information, including Personal Information.
Disclosure: The Dashboard and the Reports are designed for the End Users only (or others to whom you grant access to the Dashboard). You must not disclose any Report or other information provided as part of the Services to any other person without our prior written consent (such consent will not be withheld unreasonably). In addition, and without limiting the other provisions of this Agreement, you must not use or disclose FlipView’s name or the output of the Services including the Dashboard and Reports in connection with any prospectus, information memorandum or other offer or marketing document, whether public or private.
Warranties: FlipView represents and warrants that the Services will be provided in a workmanlike manner that conforms to applicable industry standards. Except for the warranty above, FlipView expressly disclaims and excludes all other express or implied representations, warranties and guarantees, including any warranties of merchantability, fitness for a particular purpose, non-infringement and quiet enjoyment. You acknowledge and understand that FlipView is dependent on certain third parties and on matters outside its control when delivering the Services. FlipView makes no warranty that the Services will be uninterrupted, timely, secure, virus-free, error-free, free from black-outs or brown-outs, accurate or reliable. Any material or data obtained or downloaded through the Services, including Surveys, the Dashboard and/or Reports are provided “AS-IS” and downloaded and used at your own risk. You are solely responsible for any damage caused by such material, including any loss of data or damage to your computer systems.
You agree and represent that you are acquiring the Service, and accepting this Agreement, for the purpose of trade. The parties agree, to the maximum extent permissible by law, that the Consumer Guarantees Act and any other applicable consumer protection legislation does not apply to the supply of the Services or this Agreement. The parties agree that it is fair and reasonable that the parties are bound by this Agreement and in particular this clause.
You acknowledge and agree that:
Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you after providing you with reasonable advance notice in writing.
Customer Data and backups: You acknowledge that FlipView will not create backups or otherwise maintain data recovery mechanisms for any of the Customer Data, including User Content (all unless otherwise agreed), and you have sole responsibility for creating, maintaining and verifying any backups of Customer Data. You acknowledge that FlipView will have no liability to you under any circumstances resulting from any loss of Customer Data, even if such loss is caused or contributed to by an act or omission of FlipView, or any failure of the Service or any App.
You acknowledge that:
You must arrange all consents and approvals that are necessary for us to access the Customer Data as described in this Agreement.
You acknowledge and agree that to the extent Customer Data contains Personal Information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with this Agreement.
Availability: You understand and agree that the Site and the Services use the internet and that the internet is a public communications network that cannot be controlled by FlipView, and any data intended to be delivered to you by means of the Site or the Services may be delayed or may not be delivered.
Liability: FlipView’s or the customer’s maximum aggregate liability under or in connection with this Agreement or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Service for a period of 12 months in aggregate.
Neither party is liable to the other under or in connection with this Agreement or the Service for any:
Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement or the Service.
Indemnity: You agree to indemnify and hold harmless FlipView, its directors, officers, employees and contractors against any loss, damage, cost (including legal costs on a solicitor and own client basis as well as the cost of FlipView’s professional time reasonably incurred in connection with any claims, inquiries, investigations or similar matters), claims or proceedings suffered or incurred by FlipView directly or indirectly in connection with the provision of the Services or this Agreement, including any failure on your part to comply with the terms of this contract.
Intellectual property rights: Subject to sub-clause b below, title to, and all Intellectual Property Rights in, the Service, the Site, and all Underlying Systems (including all Surveys, Reports and Dashboards) is and remains the property of us (and our licensors). You must not dispute that ownership.
If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
You acknowledge that the Site or Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service or the Site does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
Confidentiality: Each party must, unless it has the prior written consent of the other party:
The obligation of confidentiality in sub-clause a does not apply to any disclosure or use of Confidential Information:
Cancellation: Since the Service is a month-to-month service, you may cancel your account at any time after the initial 12 months on ninety (90) days written notice. Upon receipt of a cancellation request, FlipView will schedule your account for cancellation. Your account will remain accessible and active up until the day before the date of termination. At that time, FlipView will permanently cancel and delete the Customer Data and the Reports from the Service and the Underlying Systems.
You are responsible for downloading and accessing the Customer Data prior to the cancellation of the Service. Please note that until you request cancellation through your account, your account will be charged monthly for your Fees. Inactivity in your account will not constitute a cancellation.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
Assignment: Neither party may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
Governing law and forum for disputes: This Agreement, and the Services is governed by the laws of the Agreement Jurisdiction. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the Agreement Jurisdiction, and any dispute resolution procedure or legal proceedings in connection with this Agreement or the FlipView Service must be conducted in the Agreement Jurisdiction.
Entire Agreement: This Agreement, the Privacy and Data Protection Policy, the Order Page including the Pricing Schedule form the entire agreement between us.
Force Majeure: Neither party will be liable to the other for any failure to fulfil obligations caused by circumstances outside its reasonable control, provided that failure by a party to pay any sum due under this Agreement shall not be treated as being outside that party’s reasonable control.
Privity: No person other than you and us has any right to a benefit under, or to enforce, this Agreement.
Waiver: For either party to waive a right under this Agreement, that waiver must be in writing and signed by FlipView.
Contractor: Except as expressly stated otherwise, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
Notices: If we need to contact you, we may do so by email or by posting a notice on the Site. You agree that this satisfies all legal requirements in relation to written communications.
Survival Clauses: which, by their nature, are intended to survive termination of this Agreement continue in force, including the Limitation clause.
Severability: If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of this Agreement will be binding on you.
Fair Trading Act: The parties agree that the Services are supplied and acquired by each of them in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply to this Agreement, and that it is fair and reasonable to exclude their application.
Disclaimer: The information presented in and your use of the Dashboard and the Reports are subject to the agreement between you and Flipview Limited. Without limiting the agreement, the following applies: The Dashboard and Reports are provided as a potential guide to assist you with your business and are not determinative of the state of your business’s affairs. You may only use the Dashboard and Reports for your lawful internal business purposes. You may only share the Dashboard or the Reports with a third party, including potential investors if FlipView agrees in writing. The information presented in your Dashboard and associated reporting is an aggregation of data that you have provided. This data is not independently veriﬁed or audited. It is your responsibility to ensure that all information provided by you or on your behalf is in all respects accurate, complete and not misleading (whether by omission or otherwise). FlipView provides no opinions, representations, recommendations or conclusions about the accuracy of ﬁnancial data, the liquidity of your business, or the susceptibility to or prevalence of fraud within your business. You are solely responsible for ensuring you comply with all applicable laws, including privacy, ﬁnancial reporting and health, and safety. Copyright 2017 Flipview Limited. All rights reserved.
DEFINITIONS AND INTERPRETATION
In this Agreement:
reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
Disclaimer: The information presented in and your use of the Dashboard and the Reports are subject to the agreement between you and FlipviewTM Limited. Without limiting the agreement, the following applies: The Dashboard and Reports are provided as a potential guide to assist you with your business and are not determinative of the state of your business’s affairs. You may only use the Dashboard and Reports for your lawful internal business purposes. You may only share the Dashboard or the Reports with a third party, including potential investors if FlipView agrees in writing. The information presented in your Dashboard and associated reporting is an aggregation of data that you have provided. This data is not independently verified or audited. It is your responsibility to ensure that all information provided by you or on your behalf is in all respects accurate, complete and not misleading (whether by omission or otherwise). FlipView provides no opinions, representations, recommendations or conclusions about the accuracy of financial data, the liquidity of your business, or the susceptibility to or prevalence of fraud within your business. You are solely responsible for ensuring you comply with all applicable laws, including privacy, financial reporting and health, and safety.
Copyright 2017 FlipviewTM Limited. All rights reserved.